Originalism in the Lower Courts

Originalism in the Lower Courts in Sixth Circuit Abortion Case

In this case of first impression, Judge Bush turns to the original meaning of the Fourteenth Amendment

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Today the Sixth Circuit decided Preterm Cleveland v. McCloud. This case upheld Ohio's law, which prohibits a doctor from performing an abortion, where the doctor knows that the woman is obtaining an abortion because the unborn child has down syndrome. The Sixth Circuit fractured quite badly. But a majority of the Court agreed that the Ohio law was constitutional under Supreme Court precedent.

Here, I'd like to highlight the concurring opinion from Judge John Bush (beginning on p. 40). He articulates how lower court originalist judges should approach cases of first impression.

First, Judge Bush explains that precedent must be followed "faithfully." Here he cites an opinion from Judge Pryor:

With these principles in mind, how do we balance our role as lower court judges with our duty to apply the Constitution's original meaning? First, of course, if a holding of the Supreme Court directly applies to a case, we follow it. Rodriguez, 490 U.S. at 484. In so doing, we cannot apply a "cramped reading" of the precedent that would "functionally overrule" it. Thompson v. Marietta Educ. Ass'n, 972 F.3d 809, 814 (6th Cir. 2020). Instead, we must apply precedent "neither narrowly nor liberally—only faithfully." United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc).

Second, where there is no controlling opinion, courts must turn to the original meaning of the Constitution. Here Judge bush cites opinions from Judges Bumatay and Ho, as well as yours truly:

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to "interpret the Constitution in light of its text, structure, and original understanding" takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) ("The Supreme Court's dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court's dictum as dispositive." (emphasis added)). And if it is dubious whether a precedent "is correct as an original matter," we should "tread carefully before extending" it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51 (2019) ("[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension."). In such a case, "the rule of law may dictate confining the precedent, rather than extending it further." NLRB v. Int'l Ass'n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) ("[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear."). 

Third, Judge Bush discussed the original public meaning of the Fourteenth Amendment:

In light of the Supreme Court's silence on that issue, we must look to the Constitution's original meaning. And it is clear that there is no bar in the text of the Fourteenth Amendment, as it was understood at its ratification, to the legislative protection of unborn life with Down syndrome. Applied here, the central question for original meaning should be, "[w]hat did the average Joe (or Josephine)" from the ratification generation "understand the words" of the Fourteenth Amendment to mean? Turner v. United States, 885 F.3d 949, 957 (6th Cir. 2018) (Bush, J., concurring dubitante), cert. denied, 139 S. Ct. 2740 (2019). No such average person would have understood the operative phrase—"nor shall any State deprive any person of life, liberty, or property, without due process of law," U.S. Const. amend. XIV—to create a right to abort a fetus based on its genetic characteristics. New technology that increases knowledge about fetal genetics does not alter the Fourteenth Amendment's original meaning; it merely creates new challenges for legislation in this area. 

Judge Bush cites the writings of Randy Barnett, Lawrence Solum, Michael McConnell, Nathan Chapman, Will Baude, Evan Bernick, Ilan Wurman, John Harrison, and many other prominent originalists. I encourage everyone to carefully read his opinion.

Fourth, I appreciate that Judge Bush discussed abortion laws from Ohio in the 1860s:

Specific evidence in that regard comes from the very state where this case arose. In February of 1867, a committee of the same Ohio state senators who had voted to ratify the Fourteenth Amendment just one month earlier issued a state Senate report advocating for amendments that would strengthen Ohio's abortion prohibition in light of an "alarming and increasing frequency" of abortions. 1867 Ohio Senate Journal App'x 233. The report proclaimed that "the willful killing of a human being, at any stage of its existence, is murder." Id. at 234. And that view was by no means an outlier: there is evidence from many states that the ratification generation did not understand the Fourteenth Amendment to bar abortion restrictions. See, e.g., Casey, 505 U.S. at 952–53 (Rehnquist, C.J., concurring in part and dissenting in part) (demonstrating that a clear majority of states restricted abortion in the Fourteenth Amendment ratification generation). That evidence reinforces the clear showing that the Fourteenth Amendment's original meaning allows a state to prohibit eugenic abortions.

Fifth, Judge Bush concludes that he will not "extend" a Supreme Court precedent that is inconsistent with original meaning:

That history also raises serious questions as to the correctness of the Supreme Court's abortion jurisprudence more generally as a matter of the Constitution's original meaning. See, e.g., Gonzales, 550 U.S. at 169 (Thomas, J., concurring); Stenberg, 530 U.S. at 956 (Scalia, J., dissenting); Casey, 505 U.S. at 952–53 (1992) (Rehnquist, J., concurring in part and dissenting in part). As lower court judges, we should be reluctant to extend that jurisprudence further in the absence of a Supreme Court holding that directs us to do so. 

I will continue to highlight originalism in the lower courts, where judges decline to extend non-originalist precedents. This trend will eventually trickle up to the Supreme Court.

NEXT: Revisiting Governor Cuomo's Hostility Towards Orthodox Jews In Light of His "Fucking Tree Houses" Comment

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  1. All of these judges basically keep showing their asses as whiners feasting on sour grapes.

    These people are seriously trying to take the position that abortion is legal, but based on why you are seeking it we can stop you. The state decides when your motives are “correct” to be allowed to have a legal medical procedure?

    “Originalism” just keeps exposing itself as the most disingenuous legal theory of them all. It’s outcome based jurisprudence at its finest.

    1. In Trump v. Hawaii, liberals were saying restricting immigration is legal, but based on why you are seeking it we can stop you. And in Fulton v. Philadelphia, liberals are saying freedom of religion is legal, but based on your motives we can stop you.

      Why aren’t those equally disingenuous legal theories.

      I think that the 6th Circuit’s decision was disingenuous, although for different reasons. But saying that prohibiting discrimination trumps freedom of abortion is, right or wrong, no more inherently disingenuous a position than saying prohibiting discrimination trumps freedom of religion (Fulton) or sovereign freedom to control immigration (Trump).

      1. In Fulton, the argument isn’t that discrimination trumps free exercise of religion, but rather the law is neutral and thus is permissible under Smith.

        1. That argument was rejected by SCoTUS = …but rather the law is neutral…

          It was not neutral. Far from it.

          1. Fulton has not yet been decided.

        2. But the back-up position, in the event SCOTUS reverses Smith, waters it down, or finds Philadelphia wasn’t being neutral under Smith, is indeed an argument that prohibiting discrimination is a compelling interest trumping free exercise.

          1. I don’t see how that can be, when free exercise is an actual constitutional right, while the only right you have against discrimination is against government discrimination, not private.

            1. For help in seeing how, consult the 8-1 Bob Jones tax exemption decision from the Supreme Court, written by Chief Justice Burger, in 1983.

            2. Also consult Newman v. Piggie Park (1968), where in footnote 5 the unanimous (8-0) Supreme Court calls the argument that a person’s religious beliefs could exempt them from compliance with the civil rights laws “patently frivolous.”

            3. This “‘religious liberty’ is the one right that rules them all” claim is a Christian-nationalist lie.
              Unfortunately, our federal courts are now packed with lying Christian nationalists, thanks to Trump farming out judge-pickin’ to the Federalist Society (HQ of the self-named “Catholic Mafia”!) and Senate Republicans packing the federal judiciary with nincompoops, bigots, ideologues, activists, along with some decent, qualified, principled folks.
              Americans are protected against private discrimination, not just government discrimination. Cities, counties, and states have antidiscrimination laws, as does the federal government, which prohibit places of public accommodation from discriminating based on several or more of the following: race, national origin, religion, sex, sexual orientation, gender identity, disability, marital status, age.
              And Title VII bars private employers from taking negative employment action against (potential) employees based on race, color, national origin, sex (including sexual orientation and gender identity), and religion

      2. In Trump v. Hawaii, liberals were saying restricting immigration is legal, but based on why you are seeking it we can stop you

        Immigration is not a right so apples and oranges.

        Fulton v. Philadelphia, liberals are saying freedom of religion is legal, but based on your motives we can stop you.

        Well that’s a disingenuous description and not to mention a ridiculous analogy.

        Not getting a city contract because you discriminate against same sex couple. There is no right to do business with the city or a right to have a contract if you are discriminating against residents.

        Disingenuous is the theory that people can violate any law or regulation they like by simply saying “its part of my religion”

  2. Can someone (in good faith) explain to me how motive based abortion restrictions are any different than hate crime legislation?

    Because from where I stand, I dont see the difference.

    1. If you mean that they’re both entirely permissible under the original meaning of the fourteenth amendment, I agree.

      1. This “originalist” claim that states can ban doctors from “discriminating” against fetuses based on “disability” ’cause the Fourteenth Amendment says so is rubbish.

        The very first words of the Fourteenth Amendment are: “All persons BORN…in the United States.”

        “Unborn people” have no rights to protect pre-viability — not under the Constitution, not under federal law.

        Meanwhile Federalist Society members (and Trumplican voters) continue their disinformation campaign of insisting liberals are activist judges.

    2. Well, here’s a difference: hate-crime legislation increases the penalties for committing certain actions which already are crimes, if the criminal choose the victim based on certain forbidden criteria. It doesn’t criminalize anything which was not already criminal. In contrast, the Ohio law would criminalize some abortions which are not yet criminal at all. It wouldn’t just enhance the penalties for some already-crimes.

      1. Well, here’s a difference: hate-crime legislation increases the penalties for committing certain actions which already are crimes, if the criminal choose the victim based on certain forbidden criteria. It doesn’t criminalize anything which was not already criminal. In contrast, the Ohio law would criminalize some abortions which are not yet criminal at all. It wouldn’t just enhance the penalties for some already-crimes.

        Sure that’s the literal difference….that’s how analogies work.

        I mean the philosophy behind it. In both scenarios we are talking about intent based punishments. Your state of mind/what you know bring punishment (or extra punishment) — I dont see how the two are fundamentally different to the point where one can support one but not the other

        1. By your theory anyone who supports murder being a crime should also have no further issues? who wouldn’t that include? No point in distinguishing intent past the fact that a crime calls for it? what’s the point of that discussion?

  3. He only gets to an originalist analysis by concluding the undue burden test does not apply, which strikes me as ignoring binding precedent.

    1. I’m pretty sure the “trick” of this approach is the lower court judge claiming there is a difference between “applying” and “extending” precedent. If they do not agree with the precedent, then the case involves extending it, which they won’t do. If they agree with the precedent, or do not have a strong position either way, then they can say they are faithfully applying it.

      I have to say, its a pretty clever rhetorical strategy.

    2. Not sure how pointing out the generation that passed the 14th explicitely considered outlawing abortions to be something it not covered, extends to allowing the outlawing of Down’s abortions but not abortions in general, since that type of law is exactly what ye oldes were considering.

      As said before, I have no problem with modern generations finding new unenumerated rights due to their changing ideas. But if you feel a need to justify the opposite, what the amendment passers were thinking, how can it not apply for both?

      Also, as a tangent, it mentions the Ohio state senators wanted amendments to strengthen their ability to ouaw abortions. Assuming these were suggested state constitutional amendments, how novel for politicians to go through the proper channels to increase government power via the amendment process.

      What that even is anyway? What?

  4. I’m already on record saying these judges are violating their oaths and should resign if they want to opine about originalism rather than following precedent.

    But it is particularly offensive here. Supreme Court abortion precedents are not originalist. We know this. Heck, EVEN ORIGINALISTS CONTEND THIS. So when a lower court says “uh huh uh, the Supreme Court didn’t rule on this point, therefore I’m going to be an originalist on it” is DISOBEYING THE SUPREME COURT’S STANDARD OF REVIEW. Casey does not say use originalism. Whole Women’s Health does not say use originalism. So don’t fricking use originalism.

    It has no place here, and these INFERIOR judges are shamelessly ignoring their constitutional duty to obey the SUPREME court (capitalized words taken directly from the Constitution).

    1. More general rule. If you want to be in charge and to do your own thing, and not have to follow directives that you think are wrong, maybe don’t take a job with “inferior” in the job description?

    2. They swear an oath to the Constitution, not to the Supreme Court.

      “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States.”

      “Precedent” is not mentioned in the Constitution, is it?

      1. 1. Precedent IS mentioned in the Constitution. The “judicial power” in Article III is the common law legal system inherited from the British. And the Seventh Amendment mentions it more explicitly.

        2. You don’t need precedent for this one. The Constitution specifically calls their courts “inferior courts” and says there shall be “one Supreme Court”. In other words, it tells them to obey the Supreme Court- that is literally what those words mean.

        1. The judicial power extends to cases and controversies. The Supreme Court has appellate jurisdiction over the cases and controversies that the inferior courts decide. That is the sense in which they are inferior. Article III doesn’t say nothing about the next case or controversy.

          1. Appellate jurisdiction includes the jurisdiction to decide cases using general rules that are applicable to future cases.

            And given the Framers all were familiar with and had adopted the British Common Law system, and even mentioned it in the Seventh Amendment, Article III certainly does provide that.

            You guys are originalists right up until the original understand forces you to respect precedents. Then it’s “I’m a law unto myself”.

      2. They swear an oath to the Constitution, not to a particular interpretive philosophy.

        The humorous part is that in Josh’s class discussion on D.C. v. Heller he expresses frustration over lower court judges not following the majority opinion. Because lower court judges should follow precedent …. except when they shouldn’t follow precedent.

        1. The Constitution requires them to obey the Supreme Court. This is not debatable. The Supreme Court rejected their stupid judicial philosophy in abortion cases.

          1. The Constitution requires them to obey the Supreme court. It doesn’t require them to anticipate the Supreme court.

            In principle, “We’ll follow the Supreme court into error exactly as far as we’re legally obligated to, and not one inch further!” is a perfectly legitimate position.

            In fact, isn’t it the position many of the lower courts are taking in regards to Heller and McDonald?

            1. It’s not legitimate at all.
              Women have the right to choose to have an abortion, previability. Full stop.
              States and activist judges don’t get to take away that right, especially with nonsense smoke-and-mirrors claims like this law won’t stop any women from having an abortion. So intellectually dishonest.
              This can only be true if states and activist judges barge into doctor’s offices to interfere with the patient’s and doctor’s speech. Why should a woman have to withhold her private medical information from her own doctor?

        2. Quantum….I listened to that class as well. Isn’t the reason lower court judges are not following the majority opinion due to a small section of the majority opinion that said some restriction on gun ownership are ‘Ok’ (violent felons, mentally/emotionally disturbed, etc).

        3. Originalists believe that the original meaning of the Constitution IS the Constitution. That’ originalism isn’t so much an interpretive philosophy as a decision not to do something other than interpret it.

        4. Originalists believe that the original meaning of the Constitution IS the Constitution. That’ originalism isn’t so much an interpretive philosophy as a decision not to do something other than interpret it.

          Alternative approaches to ‘interpretation’ are seen by originalists as just different ways to decide what you’ll substitute for the Constitution.

          1. Since “original meaning of the constitution” is a chimera, originalists get to engage in selective and shoddy historical scholarship to produce the result that agrees with their ideological preference.

            1. “Since “original meaning of the constitution” is a chimera…”

              That’s a great choice of words to describe it. I will have to steal that.

              “…originalists get to engage in selective and shoddy historical scholarship to produce the result that agrees with their ideological preference.”

              Exactly this. Lawyers and legal scholars will use history when it benefits the arguments that they are trying to make, but they have no training on how to study and analyze history for its own sake. They probably have little inclination to do history properly, either, even if they did know how.

              This all is, of course, a big issue with the legal professions. Practicing lawyers work for the best interests of their clients. They will make the argument that best serves their clients’ interests regardless of what conclusions about a case their own intellect would lead them to draw. The bounds of legal ethics may prevent them from outright deception in their work, but as far as I know, there is no ethical obligation to actually believe that what they are arguing is the correct way to interpret and apply the law. Just that it is plausible to interpret and apply the law that way.

              Since practicing lawyers serving clients (and government lawyers and prosecutors serving the public) make up the vast majority of the legal profession, I wonder how much of law school is based on arguing a side, rather than trying to find the most correct outcome for a case based on following the evidence and the law objectively. Even if law school does have students mostly looking for the most objectively correct outcomes, they will then go out into the real world and construct arguments with a particular outcome as the goal.

              How does this then affect judges? Most of their careers prior to sitting on the bench will have consisted of looking to argue a predetermined side, not looking to find an objectively correct resolution to a case. Lawyers won’t always have tension between what they really think and what they are arguing, but they will always resolve any tension that they do have in favor of the desired outcome. Motivated reasoning is an essential tool for a lawyer, rather than something to be avoided as an impediment to finding the truth.

              Originalism got started by conservatives that thought that they could do better than what they saw as outcome-based legal reasoning from liberals. But they didn’t find the objective tool they say that they wanted. That is because “original public meaning” or “original intent” or anything else along those lines is just not something that can be discovered by objective analysis. There simply is no one correct answer to find when you go and look for those things. People will inevitably choose from among the different possible interpretations what they want to be correct or fill in the blanks with what they want to believe. Conservative lawyers, judges, and legal scholars were neither better trained to be objective nor have more experience being objective than liberals in the legal profession. They all went to the same law schools and have done the same jobs, so they all have the same incentives to reason toward their preferences throughout their careers. There is no reason at all for a lay person to think that conservative “originalist” judges are actually any more objective than liberal or moderate judges.

    3. Could you cite to the language in the Casey or Whole Women’s Health holdings that you feel require judges to use a non-originalist analysis when considering novel challenges to abortion restrictions?

      1. “Novel”? Go screw yourself. I’m serious- that’s enormous intellectual dishonesty.

        That is a completely dishonest insertion of a word. There’s nothing “novel” about this. It’s just an abortion prohibition. Casey and Whole Women’s Health say you apply the undue burden test, a test which itself is not originalist. So their fricking job is to shut up and apply the undue burden test.

        This is not in doubt. Indeed, in Whole Women’s Health itself, Chief Justice Roberts slapped down a court for disobeying the Supreme Court.

        1. I found Judge Sutton’s analysis persuasive on this point, but I was sincerely interested in a possible rebuttal you might have. If you’re only interested in gratuitous insults instead, I’ll leave you get into it with Dr. Ed.

          1. I do think there was a substantive rejection of your framing in that comment.
            If the Court has laid down how you deal with abortion restrictions generally (and I think it’s fair to say that it has, at least for now), then this is not a novel question – it is controlled by precedent.

            1. I agree with that conditional statement-— but I have some doubts as to whether or not it’s an accurate summary of what the Supreme Court has actually said. I note that no one appears to have cited anything actually resolving that, as far as I can tell.

              1. From the plurality in Casey:

                Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden

                And from Whole Woman’s Health:

                We begin with the standard, as described in Casey.

                .

              2. It’s been a while, but I read Casey as being about abortion regulations generally.

                Though there is some interesting jurisprudential discussion about pitching opinions to the current court, not the court that wrote the controlling precedent. I’m agin’ it, but I also think it’s hard to avoid, given the institutional incentives.

          2. Sutton claimed the undue burden test doesn’t apply because

            Casey, like all judicial opinions, resolved only “the situations presented for decision,” and the Court has never considered the validity of an anti-eugenics statute.

            That strikes me as a position that every SCOTUS decision is limited to the facts of that case which would severely undermine precedent.

  5. “Here Judge bush cites opinions from Judges Bumatay and Ho, as well as yours truly:”

    Seems odd he lost his big boy ‘B’ just for this part of his opinion.

  6. I pray for Christian conservatives to be blessed with a disabled baby like the Santorums…of course when an old couple doesn’t use protection then the baby will most likely either die in utero or be born disabled. But if someone tries to avoid impregnating a 48 year old woman just because the baby will die or be born disabled that person is an evil eugenicist!! Don’t take folic acid either you Nazis!!

    1. Why is Down Syndrome privileged by the lawyer dumbass? What if the baby is found to be black or a Democrat by genetic testing? OK to abort?

      1. Answer, since none is likely to come: Down Syndrome babies generate lots of government employment, and requiring raising taxes. The Rent Seeking Theory explains all lawyer anomalies.

  7. Interesting. The abandonment of the 10th amendment in favor of the 14th by anti-abortion lawyers seems to be seeping thru to the courts. Excellent.

    1. The Fourteenth Amendment will never be interpreted to ban abortion. This is a Fantasyland argument for only the dimmest bulbs in the conservative coalition.

      I explain this here:

      https://dilanesper.substack.com/p/no-conservatives-are-not-going-to

      1. “never” is quite a strong word

        Gay marriage, gay rights in general and other far out things were once only advocated by cranks.

        We’ll see. 50 years of failure at chipping away need at abortion may require new tactics.

        1. The abortion absolutists are on the wrong side of American politics and their cause seems destined to diminish in step with that of the right-wing coalition to which they hitched their political wagon.

        2. Basically two things are needed:

          1) Better birth control, to make it blindingly obvious that all pregnancies were wanted.

          2) Artificial wombs, to make it blindingly obvious that ceasing to be pregnant doesn’t require killing the baby. (It doesn’t now, of course, it just requires waiting a few months.)

          1. You, uh, forgot the part where the baby is born and needs someone to raise it.

            1. You are forgetting the part involving a miracle.

            2. After the part where the baby is born, most conservatives lose interest. It takes much more effort to make women second-class citizens when they aren’t pregnant.

    2. “The abandonment of the 10th amendment in favor of the 14th…”

      Like the 9th Amendment, the 10th Amendment doesn’t really say anything that wasn’t already inherent in the structure of the of the Constitution. Both the 9th and 10th Amendments essentially act as reminders not to make stupid arguments that go against what should already have been obvious.

      A more blunt version of the 9th Amendment:

      “Don’t make the asinine argument that a person lacks a right if it isn’t explicitly listed in the Constitution. There’s no way we could make an exhaustive list with sufficient detail to explain all of the rights that we think should be protected. Some of us had even argued against adopting a bill of rights at all because some jerkwad might try and say something that stupid, so we are telling you now not to fucking do that.”

      A more blunt version of the 10th Amendment:

      “We’ve given the federal government a specific list of powers, and banned the states from doing a few things. State governments can still do whatever legitimate government actions that the people of those states want that are consistent with the rest of the Constitution. They have those powers without the federal Constitution having to spell them out.”

      Blunt version of the 14th Amendment as it relates to these previous amendments:

      “Okay, we left too much power to violate the individual rights in the hands of the states. We’ll include some language about “Equal Protection”, “Due Process”, and “Privileges and Immunities”. As well as further restricting the federal government from violating people’s rights, we hope that this will make it clear that states cannot violate the individual rights of people if the Constitution would prevent the federal government from violating those rights. After all, a person’s rights aren’t really secure if only one level of government is prevented from violating it, but other levels of government can do whatever the fuck they want.”

      1. I think I like your restatement of the 9th, 10th, and 14th amendments. 🙂

  8. Last time I checked the Federal govt has no authority over abortion in any way. It is a State issue and the court should differ to the State not Roe vs Wade or Congress…none of the Federal Branches have any authority over abortion..10th Amendment is pretty clear on this..

  9. If you love Down-syndrome patients, and object to the reduction in their numbers by pre-natal testing and selective abortion, then I have some GOOD NEWS for you!

    Thanks to advances in biotechnology, we will soon be able to genetically engineer human zygotes with trisomy-21, the condition which causes Down syndrome. You will be able to implant these zygotes into your own uterus (or, if you are male, into your wife’s or girlfriend’s uterus) and have as many children with Down syndrome as you wish to have.

    We will also be able to genetically engineer zygotes with sickle-cell anemia, cystic fibrosis, Gaucher’s disease, Wilson’s disease, alpha- and beta- thalassemia, Duchenne muscular dystrophy, and maybe even Prader-Willi syndrome. (With CRISPr, we can already engineer most of those.) You will be able to have children with whatever genetic diseases you want them to have. Including, if you like, RRM2B-related MDDS, which is what little Charlie Gard had.

    Enjoy.

  10. Originalism: Still less popular than Kim Kardashian, less influential than Kim Kardashian, and likely to have roughly the same lifespan as Kim Kardashian — although originalism can claim to be a few months older than Kim Kardashian.

  11. Apparently no one bothered to give Judge Manion of the Seventh Circuit the news that Supreme Court precedent can now be ignored. His opinion concurring in part and dissenting in part in Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health (2018) opens with:

    “To put it mildly, this is an unfortunate case. Yet I must agree with the court that Supreme Court precedent compels us to invalidate Indiana’s attempt to protect unborn children from being aborted solely because of their race, sex, or disability. That a narrowly drawn statute meant to protect especially vulnerable unborn children cannot survive scrutiny under Planned Parenthood of Southeastern Pennsylvania v. Casey, is regrettable. But the fact remains that under the Casey regime, the purported right to have a pre-viability abortion is more ironclad even than the rights enumerated in the Bill of Rights. Only a majority of the Supreme Court or a constitutional amendment can permit the States to place some limits on abortion.”

    This guy needs to either get on board with the new conservative legal approach, or stop writing opinions. He just assumes that he is bound by Supreme Court precedent in this area, when it’s pretty clear he doesn’t like the relevant precedent. Someone needs to pull the guy aside and explain to him the new distinction between “applying” and “extending” precedent. After saying the case is one of extension, he can then cite a law review article by Josh or Barnett as support for not following the Supreme Court. Additionally, he can string together Supreme Court concurrences and dissents to create new precedent (because the majority opinion is just dicta).

    This guy and his antiquated method of legal reasoning need to guy!

  12. Isn’t it conceiveable that a majority of the US Supreme Court, if and when the issue is presented, could say, Holy Cow! When we ruled that a mother could abort her child, we didn’t mean that a State couldn’t bar a doctor from aborting a child KNOWING that the purpose for doing so is that the child has Downs Syndrome! That’s really awful.

    Sure, it’s not likely the Supremes wouldn’t extend their ruling to bar this statute, but if they haven’t done so yet, why is a lower court judge required to do the job for them? And if all lower court judges rule the way they think the Supremes would like them to rule, the issue won’t even get to the Supremes.

    1. “Hey, state senators who literally voted for the 14th one month before, were considering general purpose anti-abortion laws, and therefore could not possibly have thought the 14th forbid states from doing so.”

      And therefore states may restrict Downs’ Syndrome abortions.

      And therefore states may not restrict general abortion.

      Huh?

  13. So a committed of the Ohio Senate has precedence over the Supreme Court?

    Not withstanding the commitee was a part of a State Chamber likeley ruled uconstitutional due to unequal representation?

    1. The Supreme Court, like the rest of the federal government, only has powers The Several States have granted it. So in that sense, yes, the ideas the state politicians had as to what those powers were, when they approved this or that amendment, are vital to understand.

      I mean, if you enjoy a governmental designed to forestall the natural tendency of politicians to agglomerate power at their own whim, that is.

  14. So much in this post that shows why originalism is garbage (as practiced by conservative jurists) that I hardly know where to begin. [I will use italics for quotations from the opinion, quotation marks for Blackman’s commentary]

    And it is clear that there is no bar in the text of the Fourteenth Amendment, as it was understood at its ratification, to the legislative protection of unborn life with Down syndrome.

    Uh, yeah. Because the 14th Amendment was not written to give direct instructions on how to deal with such specific issues. So, Judge Bush then tries to get to that: (emphasis not included. It is not clear if the bold emphasis was in the opinion or is Blackman’s addition.)

    Applied here, the central question for original meaning should be, “[w]hat did the average Joe (or Josephine)” from the ratification generation “understand the words” of the Fourteenth Amendment to mean? [citation omitted] No such average person would have understood the operative phrase—”nor shall any State deprive any person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV—to create a right to abort a fetus based on its genetic characteristics.

    How can Bush know this? The people from that era have been dead over a century. Bush is just guessing about what people of the time would have thought about this. The “average” person from that time period wouldn’t have understood much about genetics at all. Even the scholars and scientists of the time were just starting to understand it. Mendel’s work on genetics and the heredity of traits was published about about the same time that the 14th Amendment was ratified. DNA, as a molecular compound was discovered in 1869, but its role in genetics was not known at the time, and it would be 80 years before Watson and Crick would confirm Rosalind Franklin’s x-ray crystallography on DNA’s double helix structure, take it further, and get credit for its discovery.

    “Fourth, I appreciate that Judge Bush discussed abortion laws from Ohio in the 1860s:”

    Great, sounds like we might get something relevant, finally.

    In February of 1867, a committee of the same Ohio state senators who had voted to ratify the Fourteenth Amendment just one month earlier issued a state Senate report advocating for amendments that would strengthen Ohio’s abortion prohibition in light of an “alarming and increasing frequency” of abortions.

    Hmm, a “committee” from within the same legislative body, issued a “report”. I sense some big stretches coming.

    The report proclaimed that “the willful killing of a human being, at any stage of its existence, is murder.”

    So, did the report recommend that abortion be punished with hanging or at least with prison time comparable to the seriousness of the crime of murder? And for a woman that sought and got an abortion, not just a physician that performed one? Did the Ohio legislature act on this report and pass any laws?

    And that view was by no means an outlier: there is evidence from many states that the ratification generation did not understand the Fourteenth Amendment to bar abortion restrictions…(demonstrating that a clear majority of states restricted abortion in the Fourteenth Amendment ratification generation)

    What kinds of restrictions? This at least speaks to what laws they thought might be compatible with the 14th Amendment, but Judge Bush (as quoted by Blackman) isn’t giving us any details. And by “ratification generation” he is also waiving through that the 14th Amendment was new, and that restrictions that existed prior to its ratification, or that were passed around the same time, would need to be challenged to decide whether they really were compatible with the 14th Amendment. And even if they had been, and been upheld, we saw that the 14th Amendment was not applied faithfully by federal courts, including SCOTUS, within living memory of its ratification, so that doesn’t give me reason to think that precedent from that time period should necessarily be followed anyway.

    And, of course, Judge Bush favorably cited Thomas, Scalia, and Rehnquist. Scalia and Rehnquist dissented in one of my favorite Supreme Court landmark cases, Edwards v. Aguillard (1987) They would have upheld a Louisiana law mandating the teaching of Biblical creation as well, if the scientific theory of evolution was taught in science classes. (Thomas, for his part, has argued that the Establishment Clause doesn’t apply to the states at all, though he wasn’t on the Court yet to be a part of Edwards.) I bring this up to show how these conservative Justices, with their favorability toward originalism or the high standing that originalists give them, are as likely as any liberal judge to engage in motivated reasoning and dispense with any logic or consistency in order to reach a result that their ideology and personal religious beliefs would prefer.

    The bottom line is that I simply see no reason to trust that conservatives will ever apply originalism in a neutral fashion, which they pretend is its purpose. Robert Bork disparaged the 9th Amendment in his confirmation hearings as being like an “ink blot” that judges could read into the Constitution anything they wanted. Originalism isn’t quite like that, but it is close. Originalism works well for conservatives because the Founding era and the time of the the ratification of the 14th Amendments were times when many conservative ideas about social structure were still the dominant views. They get to use that to support what they want to be the results now, even though most of those social issues involve much greater understanding and facts now than what was available to people of that time. We can’t know what people of the 18th and 19th century America would have done with our knowledge and understanding. Originalism is just a blank check to find a path to argue what conservatives want to be true now and give it a false authority from people dead more than a hundred years.

    1. Scalia’s dissent in Edwards v. Aguillard (and many others) was totally bonkers.
      He wrote that CREATION science had nothing to do with religion and therefore the court had no reason to void the law.
      Every CREATION needs a CREATOR.

  15. “That history also raises serious questions as to the correctness of the Supreme Court’s abortion jurisprudence more generally as a matter of the Constitution’s original meaning.”

    Oooof.

    As I understand it, SC Justices can use any method, source, reasoning, etc. to come to a decision.

    One would hope they use sound theories, the Constitution, accepted legal resources, stare decisis, etc., in their decisions but there’s nothing that can stop them from using dice, the Bible/Koran, astrology, etc., to base their decision.

    The inferior courts do not have the responsibility nor the authority to overrule or ignore the Supreme Court.

  16. Even though I disagree with the Court’s abortion jurisprudence, I think lower courts have to follow it and aren’t free to simply disregard it whenever it doesn’t cover the specific point they are addressing.

    I think it’s perfectly legitimate to have a narrow interpretation of the court’s jurisprudence that won’t extend it beyond where it’s indisputable. I’ve defended 9th Circuit interpretations of the 2nd Amendment where it didn’t extend it to cases the Supreme Court expressly didn’t reach, as the limitation (agree with it or not) comes from the Supreme Court itself. I think it’s a defensible interpretation for that reason, whether or not it’s the one I’d pick.

    But saying you will flat out ignore Supreme Court precedent unless there is a case on the specific topic at hand goes much further than that. It isn’t a defensible approach to applying Supreme Court precedent.

  17. I acknowledge my own interpretation is only partially originalist.

    The Constitution contains many terms, especially adjectives – “reasonable” searches and seizures, “probable” cause, “excessive” fines, “cruel and unusual” punishments, “necessary and proper” acts, and yes,”due” process, among other things – that are somewhat vague and necessarily represent matters of judgment.

    I think that in general judges are not limited to what sources say these terms meant in 1789. Not only can fines adjust for inflation, but society’s sense of what is excessive can vary over time, and I think judges can take a common-law approach to this. Similarly with concepts of privacy and what constitutes a “reasonable” search.

    Thus I think it’s completely reasonable to say “due” process requires notice and an opportunity to be heard, non-vague laws, and so forth.

    Where I disagree is when an adjective is given a meaning so expansive that it no longer attempts to describe the noun to which it is attached. Stand-alone rights invented out of whole cloth by courts based on judges’ policy preferences have nothing to do with the process of law. This is particularly the case in highly disputed matters where the prose with which judges are known to wax on these matters reflects, not agreed or accepted truths or principles, but an inflated ego that lacks sufficient awareness of others and their differences to have learned that ones own intellect is not necessarily a direct or infallible receiver of universal intelligence.

    Justices of the Supreme Court are not popes, Going through ceremonies of putting on robes and speaking ex cathedra doesn’t change this.

    1. You’re referring to parents’ substantive due process right to decide how their children will be educated, right? That’s a classic example of a right “invented out of whole cloth by courts based on judges’ policy preferences.”
      “I’ve read the Constitution front to back to front again, and nowhere do I see any mention of” parents having this “invented” right.
      Conservatives love to gripe about liberal elites, except for when they speak condescendingly about the Warren court, where judges “implemented policy.”
      Well, let me say, “Thank God Chief Justice Warren didn’t have to deal with ‘originalists’ insisting they should ‘Make America 18th-Century Again.'”
      We ALL know how Brown v. Board of Education and its progeny would have turned out if the Federalist Society had been around back then to pack the judiciary with “originalists.” We’d have “segregation now, segregation tomorrow, segregation forever.” (I realize there are some conservatives who wish we had “segregation now.”)
      Rights Americans know and value would be non-existent if “originalists” had their way:
      “You have the right to remain silent. Anything you say and do can be used against you… .”
      Criminal suspects have the right to an attorney, paid for by the government if they cannot afford one themselves (not “originalist”).
      Criminal suspects have the right to have an attorney present every step of the way, long before trial begins (not “originalist”).
      Americans have the right to learn about birth control AND use it free of government prohibition — even the single ladies (not “originalist”)!
      Americans have the right to marry the person they choose (not “originalist”), regardless of the religious-intolerant insisting that inter-racial and same-sex marriages must be banned because “God’s law” says so. The Religious White shouted the exact same protests, including claims of their “religious liberty” being violated, against Loving v. Virginia that they did for Obergefell v. Hodges.
      If this was the “whole cloth” invention you were referring to, you are wrong.
      Obergefell was a straightforward 14th Amendment equal-protection case. Every state allowed two adults, of age, of one’s own free will, of sound mind, not closely related, not currently married to someone else, etc. The Equal Protection Clause requires substantially similar groups of people to be treated the same, unless the government has a reason not to. Because marriage has long been recognized as a fundamental right and because gays are a historically marginalized group, more than a rational reason to ban gays from marrying was needed (although, as with previous cases involving anti-gay discrimination, no state [or anti-gay hate group] could cough up even a single rational reason anyway).
      We start with two adults — all other conditions (sound mind, of age, etc.) staying the same. In the past, “two adults” was one man and one woman. Substantially similar is the comparator, also “two adults”: one man and one man.
      We don’t maintain traditions and forbid all revisions for the sake of preserving tradition. Laws must be rational, at a minimum. This excludes religious beliefs because religion by definition is irrational, as are fears triggered by parades of horribles and slippery slopes.
      Same-sex marriage was not the handiwork of “five unelected judges.” Judges in all tiers of state and federal courts used the comparator test of the Equal Protection Clause. And not once in these myriad cases did anyone provide even one rational reason why states could constitutionally ban gays from marrying.
      And don’t get me started about all the rants about the sacred importance of the democratic process…

  18. If you’re going to cite legislatures who, in the same session, ratified the 14th amendment and restricted abortion, you’re going to have to explain how the same Congress that send the 14th amendment to the states set up a system of racially segregated public schools for the District of Columbia. (At the same time, Congress provided that the Freedman’s Bureau could channel assistance to disadvantaged blacks on the basis of their race (i.e., they didn’t have to be former slaves)–a fact that originalist opponents of race-based quotas and other forms of affirmative action will have to explain away somehow. Fact is, no one really wants to go back to the original meaning of the 14th Amendment.)

  19. You have no business teaching anyone constitutional law, Josh.

  20. Exactly the same strategy can be used to erode any of the important bodily autonomy rights in the lower courts. Over-the-counter emergency contraception; gay adoption; spousal consent for abortions; and on and on. Activist jurists at the lower court level toss a spanner into the works, lay it up for the Supreme Court, see how it comes down – maybe the Supreme Court serves a much-deserved bitchslap, maybe not. In the meantime, we have circuit splits, years of uncertainty, and millions of people in limbo as rights they thought were established and fundamental are now fighting again.

    And here’s Josh Blackman, celebrating that development in his characteristically intellectually dishonest fashion.

    I cannot for the life of me understand the conservative/libertarian enthusiasm for attacking abortion rights. This originalist fetishism serves no freedom-preserving purpose. It’s just short-sighted and misguided misogyny, and it will reverberate back on you when social conservatives come for your easy access to birth control and premarital sex.

    Though that might explain it – you all seem to be either incels or well past reproductive age.

    1. “Exactly the same strategy can be used to erode any of the important bodily autonomy rights in the lower courts.”

      One of Trump’s more controversial nominees to the federal bench, Brian Buescher, had basically expressed this as the goal of all of these TRAP laws explicitly. Giving lower court judges the opportunities to erode abortion rights precedent was the plan. This is from an interview he gave with the Nebraska Family Alliance while running for Nebraska AG:

      “When regulating abortion, my view is this: We should regulate abortion as much as we possibly can. I’m in favor of banning abortion. Unfortunately, under the Roe v. Wade law, or case, and its prodigy [sic], that is not possible, to ban abortion right now. So what I believe we should do is we should assess the situation and try to enact laws that go as far as we can without being invalidated.

      So in other words, we need to make sure our laws have a chance of being upheld by the courts. Because if not, we’re really kind of wasting our time because if it’s invalidated, then the law doesn’t ever get enacted. So what we do it we go after abortion bit by bit.”

      He was confirmed by the Republican Senate, of course, so now he is a federal judge with the ability to enact this plan.

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